Karnataka High Court
V Ramaiah vs State Of Karnataka on 6 January, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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WP No. 51567 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT PETITION NO. 51567 OF 2019 (BDA)
BETWEEN:
V. RAMAIAH,
S/O. LATE N. VENKATAPPA,
AGED ABOUT 65 YEARS,
RESIDING AT NO.44/1,
11ST MAIN, 'D' BLOCK,
2ND STAGE, GYATHRINAGAR,
BANGALORE-560 010.
...PETITIONER
(BY SRI. PRASAD VINOD GANAPATI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS SECRETARY TO HOUSING
Digitally
signed by AND URBAN DEVELOPMENT DEPT.
SUMA B N
Location: VIDHANA SOUDHA,
High Court of
Karnataka BENGALURU.
2. BANGALORE DEVELOPMENT AUTHORITY,
BY ITS COMMISSIONER,
B.D.A. COMPLEX,
SANKEY ROAD, KUMARA PARK WEST,
BENGALURU-250 020.
3. SMT. LAKSHMINARASAMMA
W/O. B.A. RAMACHANDRAPPA,
DOOR NO.1225/A,
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WP No. 51567 of 2019
PRAKASH NAGAR,
BENGALURU-560 025
...RESPONDENTS
(BY SRI. SPOORTHY HEGDE N., HCGP FOR R1;
SRI. SACHIN B.S., ADVOCATE FOR R2;
SRI. K. SRINIVASA AND
SRI. S. SRINIVASA MURTHY, ADVOCATES FOR R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE
RESPONDENT BDA TO FORM A ROAD FOR THE PETITIONER
AND OTHERS, AS STATED IN THE POSSESSION CERTIFICATE
ISSUED BY CITB IN CONNECTION WITH THE SITE NO,.2703 AT
ANNEXURE-B AS DIRECTED BY THIS HONBLE COURT, IN THE
RFA NO.788/2005 OR ALLOT THE MARGINAL LAND STATE
ABOVE, TO THE PETITIONER AS PER THE RULES OF
ALLOTMENT OF MARGINAL LAND AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
ORAL ORDER
The petitioner is before this Court seeking the following reliefs:
i. Issue a writ of mandamus directing the respondent BDA to form a road for the petitioner and others, as stated in the possession certificate issued by CITB in connection with the site No.2703 at -3- NC: 2025:KHC:5 WP No. 51567 of 2019 Annexure-B, as directed by this Hon'ble Court, in the RFA No.788/2005.
Or Allot the marginal land state above, to the petitioner as per the rules of allotment of marginal land.
ii. Issue a writ of mandamus directing the BDA keep the marginal land, situated on the western side of site No.2703 New Corporation No.44/1 in 11th Main, D Block, Gayathrinagar, Bengaluru vacant, after removing the encroachment and after removing the shed (stated in the endorsement at Annexure- M).
iii. Issue any other writ or order or direction which this Hon'ble Court deemed fit in the circumstance of the case."
2. The case of the petitioner is that, he is the absolute owner of the property bearing No.2703, New Corporation No.44/1, situated in 11th Main 'D' Block, Gayathri Nagar, Bengaluru having purchased the same from one Sri.Gangadharaih under deed of sale dated 02.02.1973. It is the further case of the petitioner that there is a storm water drain, running North to South on the western side of the property belonging to the petitioner and that after the said storm water drain there exists a marginal land measuring 25 feet North to South, 6 feet East to West, which is the only means of access to -4- NC: 2025:KHC:5 WP No. 51567 of 2019 the property of the petitioner and the petitioner had been using the said property uninterruptedly and continuously since then.
3. That in the year 1992, one Smt.Lakshminarasamma started to put up construction on the said marginal land thereby obstructing the petitioner's right of way, constraining the petitioner to file a suit in O.S.No.7148/1992 seeking relief of declaration and mandatory injunction. The said Lakshminarasamma is arrayed as respondent No.3 in this petition. The Bangalore Development Authority (BDA) and Corporation City of Bangalore were also made parties to the said suit. The said suit was dismissed. Being aggrieved, the petitioner filed a Regular First Appeal in RFA No.788/2005, in which this Court taking note of the fact that the petitioner herein had purchased only half of the site bearing No.2703 from its erstwhile owner who had not been made party to the said suit and that in the absence of said persons rights of the parties could neither be determined nor any direction -5- NC: 2025:KHC:5 WP No. 51567 of 2019 be given to the corporation and the BDA, disposed of the said regular first appeal with an observation made at paragraph 4 thereof which reads as under:
"4. Therefore to do this the suit is required to be remanded back to the trial court. While doing so, this Court directs the trial court to permit the plaintiff to bring the persons who are in possession and enjoyment of the marginal land, situated on the eastern side of the site bearing No.2703 and also erstwhile owner Sri.Gangadhar and trial court is also directed to delete defendants 3 and 4 from the said suit and proceed with the suit against BDA, Corporation and said erstwhile owner of the property, Gangadhar and the present occupiers of marginal land to east of original site No.2703 and pass necessary judgment to keep marginal land open for the benefit of the owners of portion of original site No.2703. If proposed road is not formed, the trial court shall pass necessary orders directing defendants 1 and 2 to form proposed road if it is not already formed as stated in Exhibit P3, the possession certificate issued to the erstwhile owner of site No.2703 on court."
4. Subsequently it appears that petitioner had filed an application to implead the occupiers of the marginal land and also legal representatives of the erstwhile owner Sri.Gandharaih to implead them as proposed defendants in the said suit which was rejected by the trial Court. Which order was challenged by the petitioner herein by filing writ -6- NC: 2025:KHC:5 WP No. 51567 of 2019 petition in W.P.No.36634/2011 (GM-CPC). The said writ petition was withdrawn by the petitioner on 03.06.2014 with liberty to approach the BDA to seek appropriate remedy for providing access to the main road. Petitioner herein had also filed a review petition seeking review of Judgment passed in RFA No.788/2005 which was also rejected.
5. It is the further case of the petitioner that he had made representation to the respondent-BDA to provide access to the main road through the marginal land which has not been considered till date.
6. Learned counsel for the petitioner reiterating the grounds urged and the prayer of the petition submits that in the possession certificate issued by BDA there is a reference to the existence of the marginal land towards western side of the property. That once the BDA in the memo dated 17.06.1965 had given the description of the property allotted to the vendor of the petitioner showing existence of the storm water drain on the western side and -7- NC: 2025:KHC:5 WP No. 51567 of 2019 thereafter marginal land, cannot now shy away and contend that the marginal land does not belong to the BDA and the same operates as an estoppel. Therefore, the petitioner is seeking the relief as sought for.
7. In response the learned counsel for the BDA drawing attention of this Court to the contents of Annexure-M, an endorsement that was issued by the BDA to the petitioner wherein, he specifically points out that the BDA had made its stand very clear that the marginal land claimed by the petitioner does not belong to the petitioner and the same forms part of the layout, which was approved in respect of a revenue land.
8. Learned counsel for the BDA referring to the said document further submits that since the relief sought for by the petitioner is on the premise that the marginal land belonged to the BDA and the same having being clarified in writing, the petition is not maintainable. Hence, seeks for the dismissal of the petition. -8-
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9. Heard. Perused the records.
10. As noted above, even according to the petitioner, third respondent herein had put up construction on the purported marginal land, which is situated on the western side of the storm water drain and the petitioner had already approached the civil Court. However though the regular first appeal filed by the petitioner in RFA No.788/2005 was disposed of remanding the matter for consideration, the petitioner for reasons best known has not pursued the said matter. Petitioner had apparently made attempt by filing writ petition in W.P.36634/2011 for direction to the BDA for grant of marginal land which he has withdrawn. Now the petitioner relying upon the observation made at paragraph 4 of the Judgment passed in aforesaid regular first appeal in RFA No.788/2005 which is extracted hereinabove, s insisting that the marginal land formed part of the layout formed by the BDA and that therefore the petitioner is entitled for the relief sought for. -9-
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11. The endorsement issued by the BDA more particularly at Annexure-M clarifies that the marginal land does not belong to the BDA and that it further points out BDA has not formed any roads and sites in the layout. That the marginal land being asked for by the petitioner for access to his site No.2703/A is a revenue site over which BDA has no right or authority and that certain persons have already put up shed on the said property. The endorsement further points out that the existing storm water drain which is covered by RCC slab is serving as an approach road to the petitioner as well as the owners of the neighbouring properties. As such the respondent-BDA has declined the requisition of the petitioner for demolition of existing structure on the said marginal site to form the road as sought for.
12. From the above it is clear that the marginal land being sought for by the petitioner does not belong to the respondent-BDA. In that view of the matter, the relief sought for by the petitioner cannot be considered in this
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NC: 2025:KHC:5 WP No. 51567 of 2019 writ petition in exercise of extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India and the same is accordingly dismissed.
It is made clear, notwithstanding the dismissal of the petition, the petitioner is at liberty to seek such relief as may be available under law, against the persons who are occupying the said marginal land, if permissible.
SD/-
(M.G.S. KAMAL) JUDGE JJ List No.: 1 Sl No.: 7